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Barger v. Berryhill

United States District Court, W.D. Virginia, Big Stone Gap Division

September 18, 2017

TIMOTHY S. BARGER, Plaintiff
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          Pamela Meade Sargent UNITED STATES MAGISTRATE JUDGE.

         I. Background and Standard of Review

         Plaintiff, Timothy S. Barger, (“Barger”), filed this action challenging the final decision of the Commissioner of Social Security, (“Commissioner”), determining that he was not eligible for disability insurance benefits, (“DIB”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West 2011). Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). This case is before the undersigned magistrate judge by transfer based on consent of the parties pursuant to 28 U.S.C. § 636(c)(1). Oral argument has not been requested; therefore, the matter is ripe for decision.

         The court's review in this case is limited to determining if the factual findings of the Commissioner are supported by substantial evidence and were reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). ‘“If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is “‘substantial evidence.'”” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).

         The record shows that Barger protectively filed an application for DIB on May 24, 2012, alleging disability as of October 1, 2011, [2] due to problems with his back and knees, “nerves, ” seizures, high blood pressure and fatigue. (Record, (“R.”), at 180-81, 196, 200, 223.) The claim was denied initially and on reconsideration. (R. at 100-02, 106-08, 112-18, 120-22.) Barger then requested a hearing before an ALJ. (R. at 123-24.) The ALJ held a hearing on September 19, 2014, at which Barger was represented by counsel. (R. at 41-72.)

         By decision dated November 4, 2014, the ALJ denied Barger's claim. (R. at 25-36.) The ALJ found that Barger met the nondisability insured status requirements of the Act for DIB purposes through December 31, 2016. (R. at 27.) The ALJ found that Barger had not engaged in substantial gainful activity since April 11, 2011, the alleged onset date.[3] (R. at 27.) The ALJ found that the medical evidence established that Barger had severe impairments, namely seizure disorder; lumbago and cervicalgia; history of knee surgery in 1990; obesity; hypertension; anxiety; and depression, but he found that Barger did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 27-28.) The ALJ found that Barger had the residual functional capacity to perform simple, routine, repetitive, unskilled, light work[4] that did not require driving or exposure to hazardous machinery, unprotected heights and climbing of ladders, ropes or scaffolds, as well as those that involve more than occasional reaching or exposure to excessive vibration. (R. at 30.) The ALJ found that Barger was unable to perform his past relevant work. (R. at 35.) Based on Barger's age, education, work history and residual functional capacity and the testimony of a vocational expert, the ALJ found that a significant number of other jobs existed in the national economy that Barger could perform, including jobs as an order clerk and a parking lot attendant. (R. at 35-36.) Thus, the ALJ concluded that Barger was not under a disability as defined by the Act, and was not eligible for DIB benefits. (R. at 36.) See 20 C.F.R. § 404.1520(g) (2016).

         After the ALJ issued his decision, Barger pursued his administrative appeals, (R. at 17-20), but the Appeals Council denied his request for review.[5] (R. at 8-12.) Barger then filed this action seeking review of the ALJ's unfavorable decision, which now stands as the Commissioner's final decision. See 20 C.F.R. § 404.981 (2016). The case is before this court on Barger's motion for summary judgment filed October 27, 2016, and the Commissioner's motion for summary judgment filed November 30, 2016.

         II. Facts

         Barger was born in 1968, (R. at 180), which, at the time of the ALJ's decision, classified him as a “younger person” under 20 C.F.R. § 404.1563(c). Barger obtained his general education development, (“GED”), diploma and has vocational training in carpentry. (R. at 48, 201.) He has past work experience as a crew chief for a surveying company owned by his father. (R. at 48.) Barger stated that his father closed the business, and he was laid off. (R. at 49.) He stated that he was involved in a motor vehicle accident in 2011 prior to being laid off. (R. at 49-50.) Barger stated that he had experienced three to four seizures a month for the past 15 years. (R. at 50.) Barger stated that none of his medical care providers have asked that his driver's license be revoked. (R. at 52.) He stated that he was not always truthful with his doctors, in that he minimized the number of seizures he had in order to keep his driver's license. (R. at 54.) Barger stated that he attempted to take medication for anxiety and depression, but the medication caused his seizures to worsen and to increase in frequency. (R. at 53-54.) He stated that he could stand and/or walk up to 20 minutes without interruption. (R. at 56.) Barger stated that he needed to change positions from sitting to standing every 15 to 20 minutes due to pain. (R. at 57.) He stated that he would sleep 10 plus hours after having a seizure. (R. at 57.)

         Barger's wife, Sherry Barger, also testified at his hearing. (R. at 61-65.) She stated that, over the last six to seven years, Barger experienced three to five seizures a month. (R. at 62.) She stated that Barger would sleep three to four hours following a seizure. (R. at 64.)

         Barry Hensley, a vocational expert, was present and testified at Barger's hearing. (R. at 66-70.) Hensley was asked to consider a hypothetical individual of Barger's age, education and work history, who was limited to simple, routine, repetitive, unskilled light work that did not require working around hazardous machinery, unprotected heights or climbing ladders, ropes or scaffolds; that did not require him to drive; and that did not require more than occasional reaching or exposure to excessive vibrations. (R. at 67-68.) Hensley stated that jobs were available existing in significant numbers in the national economy that such an individual could perform, including those of an order clerk and a parking lot attendant. (R. at 68.) Hensley was asked to consider the same individual, but who would be limited as indicated by psychologist B. Wayne Lanthorn's assessment. (R. at 69, 437-39.) He stated that there would be no jobs available that such an individual could perform.[6] (R. at 69.) Hensley also was asked to consider an individual who would be off task greater than 10 percent of the day on a routine and regular basis as a result of anxiety, pain or seizure activity. (R. at 70.) He stated that there would be no jobs that such an individual could perform. (R. at 70.)

         In rendering his decision, the ALJ reviewed records from Wise County Public Schools; Dr. Bert Spetzler, M.D., a state agency physician; Stephen P. Saxby, Ph.D., a state agency psychologist; Dr. Wyatt S. Beazley, III, M.D., a state agency physician; Melinda Wright, F.N.P., a family nurse practitioner; B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist; Crystal Burke, L.C.S.W., a licensed clinical social worker; University of Virginia Health System, (“UVA”); Mountain View Regional Medical Center; Appalachia Family Health; Holston Valley Medical Center; Wellmont Medical Associates, (“Wellmont”); and Jim Werth, Ph.D., a clinical psychologist. Barger's attorney also submitted medical reports from UVA to the Appeals Council.[7]

         Barger was diagnosed with a seizure disorder prior to the relevant period and received treatment in the form of medication, mainly Tegretol.[8] (R. at 299.) Barger received treatment for his seizure disorder at UVA. While he was seen by different resident physicians, his attending physician was neurologist Dr. Nathan Fountain, M.D. In August 2010, it was noted that Barger had not been seen since June 2008. (R. at 298-300.) Barger reported that since his last visit, he averaged one seizure per month. (R. at 299.) Barger described these seizures as “a funny feeling” followed by five to 10 seconds of amnesia with no post-event confusion. (R. at 299.) He reported that his seizures occurred during sleep and wakefulness. (R. at 299.) Barger's neurological examination was normal, as it had been in the past. (R. at 299.) It was noted that past neuroimaging and EEGs were normal. (R. at 299.) Barger was instructed not to drive until instructed to do so. (R. at 300.) In October 2010, Barger reported that he had not experienced a seizure since August 2010. (R. at 297.) His neurological examination was unchanged and normal. (R. at 297.) Barger was diagnosed with complex partial seizures due to cryptogenic epilepsy, unclear control, and anxiety, moderately controlled. (R. at 297-98.) He was instructed not to drive. (R. at 297.)

         In February 2011, Barger reported that he had not experienced a seizure since August 2010 and that he was doing well on his medications. (R. at 295.) His neurological examination was normal and unchanged. (R. at 295.) It was noted that Barger's epilepsy was well-controlled, and his anxiety was moderately controlled. (R. at 295-96.) In February 2012, Barger reported that he had been seizure-free for 18 months and that he was doing well. (R. at 293.) He reported that his medication did not cause dizziness. (R. at 293.) Barger reported fatigue, but stated that it was tolerable. (R. at 293.) His neurological examination was normal. (R. at 293.) Barger was diagnosed with cryptogenic localization related epilepsy manifesting as complex partial seizures, well-controlled with medication, and he was scheduled to return in 12 months. (R. at 293-94.)

         In January 2013, Barger reported that he had experienced “several seizures” since November 2012.[9] (R. at 331.) He stated that he believed he developed new episodes of seizures after taking Paxil for depression. (R. at 331.) He reported that his seizures manifested with hand automatisms. (R. at 331.) Barger reported difficulty sleeping and fatigue. (R. at 331.) His neurological examination was normal. (R. at 331.) His seizure medication was increased, and a sleep study was recommended. (R. at 332.) Barger was next seen in June 2013, and he reported that he had been experiencing one to two seizures per month. (R. at 410.) He reported that these seizures involved him making chewing movements, blowing motions and having strange and odd behavior. (R. at 410.) Barger reported that he had no recollection of these events. (R. at 410.) Barger reported that, in the past, he had incontinence associated with some seizures, but he had not experienced any incontinence with his recent seizures. (R. at 410.) He also denied any convulsions. (R. at 410.) His neurological examination was normal. (R. at 411.) In October 2013, Barger reported that he had experienced six seizures within the past four months. (R. at 416.) His neurological examination was normal, with the exception of difficulty eliciting his left Achilles. (R. at 416-17.)

         In February 2014, Barger reported that he had been experiencing an average of three staring spell seizures per week with characteristics of a complex partial seizure. (R. at 418.) In September 2014, Dr. Fountain stated that it was his opinion that Barger met the listing for epilepsy, § 11.02. (R. at 452.) In October 2014, Barger reported that he continued to experience two to three seizures per month. (R. at 455.) Dr. Fountain reported that Barger was alert and oriented; he was appropriate in conversation; his pupils were equally round and reactive to light; his extraocular movements and visual fields were full to confrontation; his face was symmetric; his strength was 5/5 throughout with normal tone; his sensation was intact to light touch; his deep tendon reflexes were 2 and symmetric throughout; and his coordination and gait were normal. (R. at 455.) Dr. Fountain diagnosed complex partial seizures, most likely due to temporal lobe epilepsy, uncontrolled. (R. at 456.)

         In February 2015, Barger reported that he experienced three to five seizures per month. (R. at 15.) Dr. Fountain diagnosed complex partial seizures, most likely due to temporal lobe epilepsy, poorly controlled. (R. at 15.) In October 2015, Barger reported that he continued to experience three to five partial seizures per month. (R. at 5-6.) He reported having no adverse side effects to his medications. (R. at 5.) Barger denied significant depression. (R. at 5.) Dr. Fountain reported that Barger was alert and oriented; he was appropriate in conversation; his pupils were equally round and reactive to light; his extraocular movements and visual fields were full to confrontation; his face was symmetric; his strength was 5/5 throughout with normal tone; his sensation was intact to light touch; his deep tendon reflexes were 2 and symmetric throughout; and his coordination and gait were normal. (R. at 5.) Dr. Fountain diagnosed complex partial seizures, most likely due to temporal lobe epilepsy, uncontrolled, although he had no worsening in seizure frequency. (R. at 5.)

         The record shows that Barger was treated at Wellmont from 2007 through 2014 and was diagnosed with a seizure disorder; hypertension; alcohol abuse; bilateral knee pain; anxiety; gastroesophageal reflux disease, (“GERD”); hyperlipidemia; back pain; dysthymic disorder; and fasciitis. (R. at 275-90, 307-26, 338-43, 360-401.) On May 28, 2010, April Stidham, F.N.P., a family nurse practitioner with Wellmont, saw Barger for complaints of fatigue, anxiety and seizures. (R. at 379.) He reported that he “may have” had two to three seizures, but the time frame of having these seizures was not noted. (R. at 379.) On February 11, 2011, Barger reported that he had not experienced any seizures for six months, and he denied symptoms of anxiety. (R. at 378.) Stidham noted that Barger's anxiety was stable. (R. at 378.) On December 28, 2011, Barger reported that he had not experienced a seizure during the past 11 months. (R. at 307.) He reported that he occasionally consumed alcoholic beverages. (R. at 307.) Dr. Souhail Shamiyeh, M.D., reported that Barger had full range of motion of his head and neck. (R. at 308.)

         On May 21, 2012, Barger complained of back pain that radiated into both arms. (R. at 310.) Barger reported that he had sustained “whiplash” from an April 2011 accident that “had resolved.” (R. at 310.) Samantha G. Addison, F.N.P., a family nurse practitioner with Wellmont, reported that Barger had full range of motion of his head, neck and upper and lower extremities. (R. at 311.) She reported that Barger had tenderness in his cervical spine. (R. at 311.) Addison reported that Barger's neurological examination was normal. (R. at 311.) X-rays of Barger's cervical spine were negative. (R. at 314, 326.) In November 2012, Barger reported that he had experienced six to 10 seizures since May 2012. (R. at 341.) Barger complained of anxiety and depression. (R. at 341.) Melinda A. Wright, F.N.P., a family nurse practitioner with Wellmont, reported that Barger had full range of motion of his ...


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